Klopp v. Moore

The opinion of the court was delivered by Safford, J.: The defendants here and below, were, with others, on September 11th, 1865, the trustees of the Baptist church and society of Leavenworth city, in this state. On the day named, they executed and delivered to the plaintiff a deed of and to certain real estate situate in the county of Leavenworth, which said deed contained the usual covenants of warranty for quiet and peaceable possession of the said property, and was executed in the individual names, and under the private seals of the parties grantors. Afterwards the said real estate was recov [34] ered. from, the plaintiff, under a paramount title, and ■ lie brought his action on the covenants in his deed against all of said grantors, and in their individual capacities. These defendants answered, in substance, that they were not liable individually on said covenants, but that they executed the same for and in behalf of the Baptist church and society as aforesaid, and as the trustees of such organization. A trial was had which resulted in favor of the defendants by reason of the finding by the court, as a conclusion of law, that they were not liable as individuals on the said covenant of warranty. ftÓ“eugfoMPMrI f“tSu9Vt?e3S. I. As to the question, where the title to the property of religious corporations vests, there is no room for argument. This is settled by the Constitution, Article 12, section 3. If then, such property is sold, the title thereto must come from and through the trustees, for the time being, of such corporation, and their deed is sufficient to convey such title. This is all conceded in the argument of counsel, and the point may be passed without further mention — though see chapter 45, section 1, Comp. Laws, 1862, as to preliminary steps. TbMEESco?p“ral auího!?ty!pt by II. But it is contended that such trustees could pot bind the corporation by a covenant of warranty, as it is claimed, in their behalf, in this instance, was done, without a special.authority for that purpose having first been given them by the corporation represented by them. And it is further claimed that no such authority is shown by the record. An examination shows the last statement or claim to be correct. It is true, that the court trying the cause found that such authority had been given; but inasmuch as all of the evidence which was introduced on the trial is preserved [35] and brought before us, we may go behind such finding and examine such evidence with a view of determining for ourselves, whether or no, that, or indeed any other finding, is sustained by evidence. This we have done, and find no testimony whatever going to establish the finding in question. The court therefore erred in making it. tjujs™ peisonHnoVaPpeea“ng that they had bindlhe^corporatwn. III. The question now recurs, how, under the circumstances, did the making of the warranty affect the corporation which was sought to be represented by these parties defendant? ' We think that the - _ , rePv ^118 inquiry must be, that such corporation was in nowise affected or bound thereby. The covenant was not in the name of, nor was it executed by the corporation; but was between the defendants, who described themselves in the body of the deed as trustees, etc., but signed it in their individual capacity only, and the plaintiff. The stipulation also was in behalf of themselves and their successors, instead of on behalf of said corporation. . In such a case it has often been held, and seems to be well settled, that the covenant and stipulation are not that of any supposed principal, but are those of the parties so executing them; and, a fortiori, when there is an utter failure to show any authority either in the instrument itself or otherwise, for the making of such covenant and stipulation, for and on behalf of such supposed principal, or to exclude personal responsibility in express terms. (14 Conn., 244.) “ If a conveyance of real property, purporting to be the conveyance of a corporation, made by one authorized to make it for them, be in fact executed by the attorney or agent in his own name, as his own deed, it will not be the deed of the corporation, although it was intended to be so. The conveyance must purport to be made and [36] executed by the corporation, acting by its duly authorized agent." (42 Mo., 78.) As bearing upon this point, see also, 4 Mass., 594; 12 id., 174; 13 Johnson, 310; and other authorities referred to in the decisions named. But it is said that these defendants intended to bind the corporation as to every agreement in the deed; and that Buch effect should be given to it and every part of it as to carry out such intention. It is perhaps the best, and under the circumstances at least a sufficient answer to this proposition to say, that they did not do what it is thus claimed they intended, if effect is to be given to the language used according to its naturally received and legal import. [See cases above cited.] And there seems to be no very good reason why the natural and legal construction should not be adopted. But it is further said, that if the parties only bound themselves by their covenant of warranty, then that part of their deed which refers to their successors must be held void. This may be true; but this is only a very small part of the deed, and certainly it is better, and more in accord with just and well-established rules of construction, to regard such reference as ineffective for any purpose, or as surplusage, than to give it such force as will do violence to all the remainder o(f such deed, by compelling a meaning to be given thereto which is not expressed, and would not otherwise be suggested. But see as to this part of the case, 14 Conn., 245, and other cases cited by plaintiff in error, which are full, and afford a satisfactory disposition of the questions here involved. Upon the conclusions thus reached in this case, it seems to follow too plainly, and especially from the authorities, to require argument to show it, that these parties must be held to have bound themselves by their said covenant of warranty in the deed [37] to plaintiff in error, and as the record now stands they must be held to the liability thereby assumed. Upon this point the following cases are referred to : 8 Mass., 162; 4 id., 594; 15 Pick., 433; 42 Mo., 74; 5 Mass., 299; 6 id., 58; 10 O. St., 444. The judgment of the district court is reversed, and the cause remanded with instructions to grant a new trial. All the justices concurring.